City of Jacksonville v. Oldham , 112 Fla. 502 ( 1933 )

The principal question presented by this appeal is whether or not the imposition, with legislative authority, of a municipal advertising tax is, or is not, constitutional; to hold it unconstitutional it would have to be decided by this Court that such a tax is not for a public purpose, although the Legislature of the State in providing for it, has said that it is.

In this respect, the present case differs from the earlier case of Loeb v. City of Jacksonville, 101 Fla. 429, 134 So. Rep. 205, where, in an opinion prepared by Mr. Justice ELLIS, this Court held the imposition of an advertising tax,without express legislative authority therefor, not unconstitutional, but simply invalid as the exercise of a municipal power not conferred upon the municipality by the Legislature.^*

The law from time immemorial has recognized the value of advertisements to advertisers, because it has always allowed substantial damages for breach of a contract to insert advertisements, damages for the breach being claimed for the loss of business alleged to have been occasioned by the failure to publish the advertisements contracted for. In constructive service of process, the courts in hundreds of cases depend for their jurisdiction upon the efficacy of advertising giving notice to the world of the pendency of the litigation and thereby affording the constitutionally required due process of law. In fact it is recorded in history that traders made themselves known and called attention to their products by mural inscriptions of the walls of public buildings long before the age of printing, and it is an historical fact that a papyrus discovered at Thebes reputed to be 3000 years old, contained an advertisement offering a reward for a runaway slave.

Economic justification for advertising at public expense for public purposes is likewise found in the earliest pages of history. The most noteworthy historical examples of publicly planned and accomplished economic advertising of the industry of a city is disclosed by the sending of state agents from the ancient city of Tyre to imperial Rome to induce Cleopatra to advertise manufactured Tyrian silks by appearing at a great Roman banquet arrayed in thin spun and clinging silken garments, made by the skillful Tyrians, and wondrously colored with the noted Tyrian purple, then a new luxury. The impression made by this ingenious bit of public advertising brought about by the commercial foresight of the silk artisans of Tyre, was so indelibly stamped upon those who were privileged to view the spectacle presented by the beauteous Cleopatra, that the reputation of the famous Tyrian silks and the famous Tyrian purple was not only spread throughout the length and breadth of Rome in contemporary time, but has become a matter of ineradicable historical significance. And as a result of such advertising the ancient Phoenician City of Tyre seethed with commerce for many years resulting from the manufacture of silk and silken garments and its constant advertising of them to the world.

In England, the fact that advertising at public expense is generally regarded as being for a public purpose, and therefore entirely valid and proper to be paid for by public funds raised by taxation, has been recognized in the "Health Resorts and Watering Places Act" passed in 1921. While the Act is a comparatively recent one, it is simply declaratory and regulatory of a legal policy long acknowledged to exist in that country with respect to the subject of public advertising done by public agencies on behalf of all of the people for a commercial purpose. Even in this country, the United States government is now busily engaged in putting over its NRA program through resorting to the greatest program of radio, news-reel, bill board, newspaper, magazine and periodical advertising ever attempted on a national scale as a means of overthrowing the baneful effects of a world-wide depression as it affects this nation, and during the World War the same public policy was followed and remained unchallenged.

With all of these facts before us, of which we must take judicial notice, since the courts are assumed to know what everybody knows as a matter of common knowledge, it seems clear that a tax for advertising purposes by a municipality, when expressly authorized by the Legislature, is plainly for a public purpose. Being so, the courts have no right to shut their eyes to historical and contemporaneous facts which support that conception of it.

No doubt abuses in the expenditure of advertising funds raised by taxation have occurred through the expenditure of such funds for purposes pretended to advertise for the common benefit of all, but which in their critical analysis, are merely promotive of some private object. The remedy for abuses in expenditures, however, is to restrain the abuse of disbursement, not to cut off by injunction the right to raise the money to be spent which can be, and should be, spent only for legitimate advertising purposes, with its expenditure kept always under public control.

BUFORD, J., concurs.

^* Insofar as the opinion of Mr. Justice ELLIS expressed the view that a municipal advertising tax was not for a public purpose the opinion was not concurred in by a majority of the members of the Supreme Court, as the reported case shows.